Tallent v. Crim , 19 Ga. App. 16 ( 1916 )

Broyles, J.

1. Where one purchasing land has the opportunity of examining it before buying it, but, instead of doing so, voluntarily relies upon the statements of the vendor concerning its character and value, the contract will not be rescinded or set aside, or the purchase-price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination. This is true although the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agent. Tindall v. Harkinson, 19 Ga. 448; Collier v. Harkness, 26 Ga. 362 (71 Am. D. 216); Allen v. Gibson, 53 Ga. 600; Stone v. Moore, 75 Ga. 565; Fuller v. Buice, 80 Ga. 395 (6 S. E. 17) ; Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353) ; Martin v. Harwell, 115 Ga. 156 (41 S. E. 686) ; Brannen v. Brannen, 135 Ga. 590 (69 S. E. 1079). The case of Carithers v. Levy, 111 Ga. 740 (36 S. E. 958), cited by counsel for the plaintiff in error, is clearly distinguished by its facts from the instant case.

2. Under the foregoing ruling, the court did not err in striking the defendant’s plea and in thereafter directing a verdict for the plaintiff for the full amount sued for'. _ Judgment affirmed.

The plaintiff demurred and moved to .strike the defendant’s answer, on the following grounds: (1) The facts set forth do not constitute a valid defense. (2) The allegations of fact do not constitute a plea of either total or partial failure of consideration. (3) It does not appear that the sayings of A. L. Grim are binding upon the plaintiff. (4) It does not appear that the defendant was legally justified on acting on the representations of A. L. Crim. (5) The allegations that the notes were obtained by fraudulent representations are demurred to because these allegations state conclusions without giving any facts on which the conclusions are based, and because there are no sufficient allegations showing fraud on the part of the plaintiff or of any one authorized in behalf of the plaintiff. The court sustained the demurrer and struck the plea, and directed a verdict against the defendant for the amount sued for.

T. 0. Battle, W. I. Heyward, for plaintiff in error. Moore & Pomeroy, contra.